The New Amendment to New Hampshire's Quality Assurance Privileges: Ensuring Substantially Broader Access to Factual Information in Medical Negligence Cases

By Mark A. Abramson and Kevin F. Dugan

I. Introduction:

During the 2002 legislative session, the New Hampshire Trial Lawyers Association helped develop an amendment to the state's various quality assurance privilege statutes which significantly restricts the application of those privileges. This amendment, which takes effect January 1, 2003, should help ensure that medical care providers are unable to withhold critical evidence when they are sued. However, at the same time, the law will continue to protect the medical care provider's ability to candidly assess what went wrong.

II. New Hampshire's Quality Assurance Statutes:

New Hampshire has adopted a variety of statutory privileges protecting documents and testimony produced during the quality assurance activities of certain health care providers. Specifically, the legislature has enacted statutory privileges applicable to: 1) Hospitals1; 2) Ambulatory Care Clinics2; 3) Nursing Homes3; 4) Community Mental Health Centers4; 5) Home Health Care Providers5; and 6) Physician Practices.6

These statutes were passed, according to our Supreme Court, in order to encourage medical care providers to frankly evaluate the quality or appropriateness of the care they provided in a given case for the purposes of providing instruction and deriving standards to be applied in future cases.7Unfortunately, the language used in the statutes was not especially clear which permitted medical care providers to invoke the quality assurance privilege under circumstances that it was not intended to cover. NHTLA helped fix this problem in the 2002 legislative session.

III. The New Amendment:

Until recently, the statutory privileges generally made the records of a quality assurance committee and testimony before such a committee confidential and not subject to disclosure in discovery. Defense attorneys in medical negligence cases argued that this meant that documents considered by a quality assurance committee could be withheld even if they were created outside of the quality assurance process. They also argued that individual witnesses or parties could be prevented from disclosing information that they had learned independently if that information had also been presented to a quality assurance committee. In essence, they took the position that evidence could be protected from disclosure, regardless of its source, if it had been considered in the course of a quality assurance proceeding.

With the assistance of NHTLA, an amendment was drafted to clarify the scope of the quality assurance privilege and to bring consistency to the statutes. The amendment adds the following language to the various privileges:

[I]nformation, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any... civil or administrative action merely because they were presented to a quality assurance program, and any person who supplies information or testifies as part of a quality assurance program, or who is a member of a quality assurance program committee, may not be prevented from testifying as to matters within his or her knowledge, but such witness may not be asked about his or her testimony before such program, or opinions formed by him or her, as a result of committee participation.8

The first clause expressly prevents medical care providers from withholding documents in discovery simply because they were presented to a quality assurance committee. The second clause appears to go much further.

The second part of the amendment broadly states that a person who supplies information in a quality assurance proceeding, or a member of a quality assurance committee, may be required to testify in a subsequent medical negligence case regarding matters within his or her knowledge. The only limitations are that the witness cannot be asked about his or her testimony before the committee or the opinions he or she formed as a result of his or her participation in the quality assurance process.

A strict reading of the amendment leads to the conclusion that, after January 1, 2003, a quality assurance committee member can be asked about all of the factual information he or she learned during the committee's proceedings. A committee member can even be asked to reveal the information in documents he or she reviewed during the quality assurance proceedings and to summarize the testimony of those who appeared before the committee. Such questioning would clearly ask for information "within the committee member's knowledge" since the committee member personally reviewed the documents and personally witnessed the testimony. And the questioning would not implicate either of the two exceptions contained in the amendment. Specifically, the witness would not be required to discuss his or her testimony before the committee or any opinions he or she formed as a result of the proceedings. 

No longer will defense counsel be able to raise a blanket objection to any testimony involving a quality assurance proceeding. The only questions that will be objectionable will be those asking a witness to disclose what he or she told a committee and those asking an individual to disclose the opinions he formed as a result of the proceedings. For example, a witness will not be permitted to withhold information in his knowledge simply because this information was included in his testimony to the committee. Rather, the witness will only be able to withhold the fact that this information was part of his testimony to the committee.

The amendment balances the rights of the two sides by ensuring that a plaintiff has access to critical factual information, thereby assisting in the search for the truth, while protecting the conclusions that are drawn during the quality assurance process. This will allow medical care providers to continue to conduct frank internal assessments of the care or treatment that was given without worrying that their determinations will be used against them in subsequent litigation.

IV. Conclusion:

On January 1, 2003, discovery will change significantly in medical negligence cases. With the help of the NHTLA, New Hampshire's various quality assurance privilege statutes have been amended to substantially broaden plaintiffs' access to factual information. At the same time, the law will continue to protect the ability of medical care providers to frankly assess their mistakes so that they will not occur again. In this way, the amendment should help all of the citizens of this state.

Endnotes

  1. R.S.A. 151:13-a.
  2. R.S.A. 151:D:2.
  3. R.S.A. 151-A:16.
  4. R.S.A. 135-C:63-a.
  5. R.S.A. 151:13-b.
  6. R.S.A. 329:29-a.
  7. See In re K, 132 N.H. 4, 10 (1989).
  8. House Bill 1390.